Obama Drafting Executive Order For Indefinite Detention Of Gitmo Detainees

Barack Obama, campaigned on the promise that he would close the U.S. detention facility at Guantanamo Bay, Cuba, signed an Executive Order mandating the same on his first day in office, and spent the better part of the past 18 months trying to find a way to try the mastermind of the September 11th attacks in a civilian court. Now, he’s apparently in the process of drafting an Executive Order that would authorize the indefinite detention of detainees:

The White House is preparing an Executive Order on indefinite detention that will provide periodic reviews of evidence against dozens of prisoners held at Guantanamo Bay, according to several administration officials.

The draft order, a version of which was first considered nearly 18 months ago, is expected to be signed by President Obama early in the New Year. The order allows for the possibility that detainees from countries like Yemen might be released if circumstances there change.

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

(…)

If signed by President Obama, the new order will provide added review for detainees designated for long-term detention. The order, which is being drafted jointly by White House staff in the National Security council and the White House counsel, will offer detainees in this category a minimal review every six months and then a more lengthy annual review. Detainees will have access to an attorney, to some evidence against them and the ability to challenge their continued detention.

Prisoners who have been deemed “high-value detainees,” including the alleged conspirators of the 2001 attacks, have been designated for prosecution in civilian or military courts.

“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

It’s been clear from the beginning that we needed some kind of policy to govern detainees captured during the so-called War on Terror, but I’m not at all certain that this is the way to do it. Ruling by Executive Decree is not compatible with life in a democratic republic, and the failure of Congress to act here has been unconscionable.

Going through the details of this plan, a shorter translation might be, “We still oppose the policies of George W. Bush regarding indefinite detention without trial for any suspect, so we’re going to handle every aspect of the situation differently unless we can’t.”

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About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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I note that many of the same people who complain that the health insurance mandate is “unconstitutional tyranny” don’t appear to share the same complaint about this, which is undoubtedly unconstitutional and undoubtedly tyrannical….

I’m ashamed to say you’re right. Doesn’t matter what side does it. This is just as repulsive a thing as I’ve seen. It’s frustrating as an Obama supporter too. DADT repeal, great. START, great. Food safety bill, great. Indefinite detention without legal recourse? Hold up there, Sparky. For me, this is about as much an absolute as torture.

You’re talking about two completely different parts of the Constitution (the Commerce Clause, Article II), so it’s possible to have completely different interpretations of the two. David Addington, for all his faults, believes that Article II should be interpreted expansively and (this is less clear) that Article I should be construed strictly; there is a defensible argument for that case based on the textual differences between the two articles.

As a philosophical/policy matter, I understand your point. But legally, I don’t think it makes sense.

@Contracts – Article II requires that the President faithfully execute the law. The law, as interpreted by the Supreme Court, said interpretation not being impacted by any subsequent acts of Congress, demands that Guantanamo detainees be afforded the protection of Common Article 3 of the Geneva Conventions. Obama is violating those protections vis a vis this Executive Order. Accordingly, the Executive Order is unconstitutional, regardless of Addington’s bizarre theory that there is basically no constitutional limit to executive power.